Chapter X Criminal Antitrust Enforcement

• Pages: 207-221

CRIMINAL ANTITRUST ENFORCEMENT

Antitrust Division Criminal Enforcement: Organization and

Structure

Federal Enforcement Policy and Choice of Remedy

At a public event in March 2022, the Deputy Assistant Attorney

General for Criminal Enforcement remarked that the Antitrust Division is

prepared to file criminal charges under Section 2 of the Sherman Act,

which prohibits monopolization or attempted monopolization, but has not

been the basis of a criminal case since 1977.1 In April 2022, the Assistant

Attorney General for the Antitrust Division confirmed this approach and,

after noting that “Section 2 has been a felony, just like Section 1,” stated

that “the Division will not hesitate” to file a criminal Section 2 charge

where appropriate.2

On October 31, 2022, the Antitrust Division announced that the

president of a paving and asphalt contractor pleaded guilty to attempted

monopolization in violation of Section 2 by proposing that his company

and a competitor allocate regional markets for highway crack-sealing

services.3 On December 6, 2022, the Division unsealed an 11-count

1. Michael Acton, US DOJ stands ready to bring criminal charges in Section

2 monopolization cases, Powers says, MLEX (modified Mar. 2, 2022, 9:12

PM), https://mlexmarketinsight.com/news/insight/us-doj-stands-ready-to-

bring-criminal-charges-in-section-2-monopolization-cases-powers-says.

See United States v. Braniff Airways, Inc., No. SA-77-CR-164 (W.D. Tex.

Aug. 16, 1977).

2. Press Release, U.S. Dep’t of Justice, Antitrust Div., Assistant Attorney

General Jonathan Kanter Delivers Opening Remarks at 2022 Spring

Enforcers Summit (Apr. 4, 2022), available at

https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-

kanter-delivers-opening-remarks-2022-spring-enforcers.

3. Press Release, U.S. Dep’t of Justice, Antitrust Div., Executive Pleads

Guilty to Criminal Attempted Monopolization (Oct. 31, 2022), available

at https://www.justice.gov/opa/pr/executive-pleads-guilty-criminal-

208 2022 Annual Review of Antitrust Law Development

indictment that charged violations of both Sections 1 and 2 of the Sherman

Act. The Section 2 charge alleged that eight defendants conspired to

monopolize the market for transmigrante forwarding services along the

U.S. and Mexico border in Texas through threats of violence against their

competitors.4 The indictment also charged related offenses, including

extortion and money laundering.5

Recent Policy Announcements from the Antitrust Division

(1) Enforcement Focused on Government Procurement

Since its inception, the Procurement Collusion Strikeforce (PCSF) has

indicted several defendants and obtained guilty pleas in construction and

government contracting cases across the country, including Alaska,

California, Connecticut, Montana, Minnesota, Florida, and Texas.6 In

February 2022, the PCSF achieved its first trial victory against a former

engineering executive found to have participated in a conspiracy to rig bids

for projects funded by the North Carolina Department of Transportation.7

That executive was later sentenced to an 18-month term of imprisonment.

In June 2022, the PCSF obtained a second conviction in San Antonio,

attempted-monopolization. See Plea Agreement, United States v. Zito,

No. 22-113-BLG-SPW (D. Mont. filed Sept. 19, 2022), ECF No. 2.

4. See Indictment, United States v. Martinez, No. 4:22-cr-00560 (S.D. Tex.

filed Nov. 9, 2022), ECF No. 1; see also Press Release, U.S. Dep’t of

Justice, Antitrust Div., Criminal Charges Unsealed Against 12 Individuals

in Wide-Ranging Scheme to Monopolize Transmigrante Industry and

Extort Competitors Near U.S.-Mexico Border, (Dec. 6, 2022), available at

https://www.justice.gov/opa/pr/criminal-charges-unsealed-against-12-

individuals-wide-ranging-scheme-monopolize-transmigran-0.

5. Id.

6. See, e.g., United States v. Zito, No. 22-113-BLG-SPW (D. Mont. 2022),

discussed supra note 3. See generally Philip Andriole & Chris Maietta, The

PCSF: A Global Presence for a Global Problem, DOJ J. FED. L. & PRAC.,

Dec. 2022, at 89, available at https://www.justice.gov/usao/page/file/

1559136/download.

7. See Jury Verdict, United States v. Brewbaker, No. 20-cr-481-LWF

(E.D.N.C. Feb. 1, 2022), ECF No. 225; see also Press Release, U.S. Dep’t

of Justice, Antitrust Div., Former Engineering Executive Convicted of

Rigging Bids and Defrauding North Carolina Department of

Transportation (Feb. 1, 2022), available at

https://www.justice.gov/opa/pr/former-engineering-executive-convicted-

rigging-bids-and-defrauding-north-carolina-department.